MARYLAND’S SYSTEM of cash bail for criminal defendants is unjust and in serious need of change. That’s the judgment of two state commissions that have studied the matter, as well as outside experts in criminal justice. But efforts to reform a system tilted in favor of those with the money to buy their freedom have failed because of opposition from lawmakers under the sway of the bail bond industry. A recent opinion by Maryland’s attorney general challenging the constitutionality of the system should lead, finally, to the change.
A nonbinding letter of advice from the office of Attorney General Brian E. Frosh (D) to five delegates who had sought an opinion concluded that holding people in jail because they can’t afford bail would likely violate due process and prohibitions against cruel and unusual punishment. The opinion, a prediction based on prior court rulings, said that judges and court commissioners must impose the least onerous conditions necessary to ensure that a defendant show up for trial and ensure public safety. That means taking into account the ability to pay.
“You can’t imprison someone for poverty,” Mr. Frosh told the Baltimore Sun. “For one guy, $1,000 bail is no big deal. For somebody else, they might not have 100 bucks, much less $1,000.” Most disproportionately affected are African Americans and Hispanics, and the effects can be devastating. Studies have shown that defendants in jail awaiting trial are more likely to plead guilty, even if they are innocent. Those who end up being acquitted or having their charges dropped often lose their jobs, because they didn’t show up for work. And those who make bail by using bail bondsmen are often stuck with years of paying off the debt regardless of the outcome of their cases.
Two factors should determine whether criminal defendants are jailed while awaiting trial. Do they pose a threat to the community, and might they skip out on their trial? The District of Columbia and Kentucky have successful pretrial release programs that don’t rely on cash bail. Systems based on empirical risk assessment have proved to be more reliable predictors of defendant behavior than seat-of-the-pants decisions from judges and court commissioners. The significant savings from not jailing people is a bonus.
The delegates who requested the opinion said they hope to use it to spur the upcoming General Assembly to abolish the cash bail system. Their chances are uncertain, given how formidable opposition has been from an industry known in Annapolis for its generous campaign contributions. Mr. Frosh, aware of those obstacles, is not pinning all his hopes for change on lawmakers. He has formally asked the state judiciary’s rules committee to consider changes that would guard against defendants being held in pretrial detention solely because they lack financial resources. The committee, whose subcommittee is set to meet Nov. 3, hopefully will recommend adoption of the reforms to the Court of Appeals.